There are cases in which the parties can benefit by proposing a Special Master to the Court.
Anyone who has litigated complex civil cases knows the dread of burdening the Court with repeated or time consuming discovery disputes. Judges are very busy and generally feel that their highest and best contributions will be in setting overall case management and deciding the many critical merits issues in the case. Yet big case litigating counsel know full well that the resolution of discovery issues can be very important to their case and to their clients. I was one of such counsel for thirty seven years of practice, on both sides of the "v."
Today, in addition to putting my years of large-scale litigation experience into service as a mediator and arbitrator, I also press that experience into service as a discovery Special Master. As a Court-appointed adjunct, stipulated to by counsel for all parties, I can spend the necessary time and devote my experience to helping counsel manage their way through discovery issues and disputes. This includes building consensus and trust, helping counsel with document production protocols, deposition protocols and/or technology assisted review protocols, resolving disputes over discovery issues, and reviewing in camera documents claimed to be privileged, work product or totally irrelevant but otherwise personally sensitive. Having been a litigating lawyer for so many years, I can appreciate the need for adequate discovery as well as fair and workable approaches for reducing cost and burden. As a neutral, I can reduce the temperature levels to help the parties help themselves work through all their discovery issues. The parties will of course always be able to appeal any of my decisions to the Court, and I will report to the Court as the case progresses.
A Special Master can also be appointed to assist the parties with settlement. In this role, the Special Master converts to a mediator role and can assist the parties with approaches to claim resolution, allocation and distribution. In some cases, the same Special Master can assist the parties with both discovery and settlement. In others, the history of discovery resolution by the Special Master may make it more difficult to obtain all parties' buy-in to the settlement role, and a different appointment will be better for the mediation function.
Resolving Detailed and Time Consuming Matters
A Special Master can also be appointed to help adjudicate claims involving massive documentation that could overly burden a Court or jury. Examples include developing and implementing mechanics for resolution of business dissolution disputes, contract or insurance expenditure disputes and review of voluminous RMBS loan files.
Simply stated, there are cases in which both the parties and the Court will benefit from the experienced assistance of a Special Master. In the right cases, my long experience as a large case litigator can provide a useful option.
The parties can ask the Court to have a discovery Special Master they have been working with act as a Mediator to help resolve their entire dispute. I have recently settled such a case in which my role as a discovery Special Master was converted to that of Mediator at the parties' request. The benefit is that the parties then have a Mediator who already knows their case and with whom they have developed confidence.
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